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CriAppeal-44-2004-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 44 OF 20041.Mahadu s/o Motiram Jogdand,Age 28 years, Occu. Agri.R/o Warud – Chakrapan,Taluka Sengaon,District Hingoli.2.Motiram s/o Ukandi Jogdand,Age 55 years, Occu. Agri.,R/o as above.3.Shankar s/o Dagdu JogdandAge 27 years, Occu. Agri.R/o as above.… Appellants[Orig. Accused]VersusThe State of MaharashtraThrough Police Station Sengaon,Tal. Sengaon, District Hingoli.… Respondent…..Mr. B. S. Kudale, Advocate for the Appellants.Mr. K. K. Naik, APP for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 03.07.2024Pronounced on: 09.07.2024JUDGMENT : 1.The instant appeal arises out of the judgment and order passedby learned Adhoc Additional Sessions Judge, Hingoli dated29.12.2003 in Sessions Trial No. 01 of 2000, by which present CriAppeal-44-2004-2- appellants are held guilty for commission of offence punishable underSection 324 r/w 34 of the Indian Penal Code [IPC].FACTS IN BRIEF, LEADING TO TRIAL2.Sengaon Taluka Police Station registered crime on the basis ofFIR filed by Ashru (PW6), regarding occurrence taking place on03.06.1999 at around 7.30 to 8.00 p.m. The genesis of the occurrenceis, obstruction of way. Accused persons assaulted complainant andinjured by use of articles like stick, axe, fists and kick blows. Injuredwere referred to Government Hospital. On the statement of Ashru,crime bearing no. 45/1999 was registered for offence under Sections307, 324, 504, 147, 148 and 149 of IPC against in all 8 accusedpersons.3.In support of its case, prosecution adduced evidence of in all 12witnesses and also relied on documentary evidence. Defence alsoadduced evidence of DW1, a medical officer. After appreciating theevidence adduced by both sides, learned trial Judge recorded thefinding that prosecution has succeeded in establishing guilt of onlyaccused nos. 1 to 3 for offence under Section 324 r/w 34 of IPC andsentenced them to suffer imprisonment for two years and to pay fine,
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CriAppeal-44-2004-3- in default, to suffer simple imprisonment for six months. By samejudgment, accused nos. 4 to 8 stood acquitted from all charges. Above conviction is now taken exception to by convicts-originalaccused nos. 1 to 3.SUBMISSIONSOn behalf of the appellants :4.Learned counsel for the appellants pointed out that admittedlythere is previous enmity. There are cross cases. According to him, inthe trial court, prosecution could not establish the charges beyondreasonable doubt. He pointed out that though prosecution claims thatthere is convincing, cogent and reliable direct evidence, it is not so.To buttress such submission, learned counsel took this Court throughthe observations recorded by learned trial Judge, noting thatwitnesses are not eye witnesses. He further submitted that on visitingcross of each of the prosecution witnesses, it is found to be full ofmaterial omissions, contradictions and variances. He also pointed outthat medical evidence also is not concrete and full proof. That, evenmedical expert failed to bring medical record to show that so calledinjured were admitted and examined. Lastly, he submitted that CriAppeal-44-2004-4- learned trial court, on same evidence, has already acquitted accusednos. 4 to 8 from all charges, but only accused nos. 1 to 3 are chosen,even when there was weak and virtually no evidence against them.That, it being a free fight, roles were not clear. Therefore, he criticizesthe judgment passed by learned trial court to be erroneous, bad inlaw and not sustainable. 5.Learned counsel for the appellants has placed reliance on thedecisions of this Court in Pintya @ Nilesh Govindrao Kokate v. Stateof Maharashtra 2008 ALL MR (Cri) 1801 and Shaikh Baba s/o ShaikhAnis v. State of Maharashtra 2011 ALL MR (Cri) 1394.On behalf of the State :6.In answer to above, supporting the judgment, learned APPpointed out that, there is direct evidence as well as injured witnesses’account. That, witnesses are consistent and each of them has specifiedand defined the role of convicts. That, they were armed with deadlyweapons and there is recovery. That, injured were immediatelyexamined and the doctor, who examined and treated them and issuedmedical certificates, has also stepped into the witness box. Therefore,according to him, finding all necessary ingredients to attract Section CriAppeal-44-2004-5- 324 IPC being available, learned trial court has committed no errorwhatsoever in recording guilty. Hence, he prays to dismiss the appealfor want of merits.SUM AND SUBSTANCE OF THE PROSECUTION EVIDENCE7.The role and status of the 12 witnesses examined by theprosecution, and the sum and substance of their evidence is as under :PW1Ramji stated that on hearing news of quarrel, he went to thescene of incident and saw Ashruba with bleeding injury. Inchief itself, he stated that he was not present at the time ofactual quarrel, but he marked presence of accused on that placeand claims to have asked accused not to assault. He furtherstated that accused Motiram gave him axe blow on the frontalpart of head, accused Mahadu inflicted him axe blow on his leftthumb. When Rahubai came, accused Motiram gave her axeblow from blunt side on right hand and also gave axe blow toSunita on head. He further deposed about they being taken tohospital.PW2Rahubai at Exhibit 41 deposed that her son Ashruba (PW6) wasassaulted at around 8.30 p.m. and she learnt about it fromsmall children. She deposed that Motiram, Mahadu andShankar had axes in their hands. She was given blow from theblunt side of axe on forearm by Motiram and she sufferedfracture. Her son Ashruba and brother-in-law were assaulted by CriAppeal-44-2004-6- axe. According to her, some assailants had sticks and personsfrom Sengaon took them to hospital at Parbhani.PW3Shantabai, wife of PW1 Ramji, testified that Ashruba is hernephew. After she heard quarrels from her grand-daughter, shewent to the spot which was near Admane’s cattle shed.According to her, Motiram gave blow with axe on the head ofher husband, as well as Mahadu gave blow on thumb of herhusband. Shankar assaulted herself. Ashru and her husband felldown due to assault. They were taken to Sengaon.PW4 Dr. Rodge, in his evidence stated that on 03.06.1999, fourinjured were brought for examination and treatment. He statedthat he examined Sunita who had cut wound on frontal areawhich was simple in nature. He also examined Rawanabai whohad two injuries, i.e. cut wound with query fracture of ulna andmultiple contusion on back, and that, as he was not certainabout nature of injuries, he referred her to radiology. The thirdinjured examined by him was Ramji who had two injuries, onecut injury with query fracture of skull on the frontal area, butinjury was simple in nature, the 2nd injury was cut wound withlaceration on left thumb. He also claims to have examinedAshruba and found 2 wounds i.e. a cut wound on left frontalarea and a contused lacerated wound on mid-head. He wasalso referred for radiology. He identified certificates Exhibits 45to 48.PW5Tulshiram acted as pancha to seizure panchanama Exhibits 52to 57. CriAppeal-44-2004-7- PW6Ashru, at Exhibit 61 deposed that all accused had obstructedhis way while he was proceeding towards field and he was alsoquestioned and abused by Mahadu. Mahadu gave him axe blowon his head. His uncle Ramji came. Motiram gave axe blow tohis uncle Ramji on head. His sister Sunita came and she was hitby Motiram on the center of her head. When his motherRahubai came, Motiram gave axe blow from the blunt side.Then his paternal aunt came. Mohan, Dagdu, Kashiran andothers came and all accused assaulted by stick and fist blows.At hospital, police recorded his statement.PW7Sunita, daughter of PW1 Ramji, stated that when they went tothe spot on hearing news, she saw Mahadu assaulting Ashruwith axe. When her father went to rescue him, Motiram gavehim blow on the head and he fell down. Again Mahadu gaveaxe blow on left thumb. They went to Sengaon.PW8Prakash stated that at the time of incident he was in the house.There was uproar in the village. He went there. He saw Ashruand Ramji being given axe blow. Ramji was fallen down. Sunitawas also given blow and Rahubai was given axe blow on herhand from blunt side of axe. All injured were taken to Sengaon.PW9Siddharth, son of PW1 Ramji, stated that he knew accused aswell as Ashru. On 03.06.1999 when he was in the house, helearnt from boys about Ashru being assaulted by Motiram,Mahadu and Shankar and their relatives. He went to the spotand saw Mahadu, Motiram and Shankar had axes in theirhands. Motiram had hit blow on Ashru’s head and on the leftside of head of his father Ramji. That time, Mahadu gave axe CriAppeal-44-2004-8- blow to his father on left thumb. Motiram gave blow of axe onthe left hand of Rahubai. Shankar gave axe blow on the head ofSunita and other persons gave stick blows.PW10Sudhakar is pancha to spot panchanama. He did not supportprosecution.PW11Mohan stated that when he went to the spot, there was quarrelgoing on. Mahadu, Shankar and Motiram had axes in hand andothers had sticks. Mahadu gave axe blow on Ashru. Motiramgave axe blow on Ramji, Shankar gave blow on the head ofSunita. Motiram gave axe blow on Rahubai. Ramji, Ashru andSunita had suffered bleeding injury and they were taken to thehospital.PW12PSI Akoskar is the Investigating Officer.8.Defence has also examined DW1 Dr. Rodge, who stated thatwhile he was attached to Primary Health Center, Sengaon, heexamined accused Mahadu who had suffered abrasion on foreheadwhich was simple in nature. He also examined accused Motiram whohad two contusion injuries over left arm and above right ear.According to him, Nandu Motiram Jogdand had contusion on rightscapula and accused Shankar had abrasion on right cheek. He issuedcertificates Exhibits 87 to 89. CriAppeal-44-2004-9- ANALYSIS9.In this appeal, there is challenge to the finding of guilt recordedby learned trial Judge for offence punishable under Section 324 r/w34 of IPC. For proper comprehension and understanding, Section 324IPC is reproduced as under :“Section 324. Voluntarily causing hurt by dangerousweapons or means.- Whoever, except in the case providedfor by Section 334, voluntarily causes hurt by means of anyinstrument for shooting, stabbing or cutting, or anyinstrument which, used as a weapon of offence, is likely tocause death, or by means of fire or any heated substance,or by means of any poison or any corrosive substance, or bymeans of any explosive substance or by means of anysubstance which it is deleterious to the human body toinhale, to swallow, or to receive into the blood, or bymeans of any animal, shall be punished with imprisonmentof either description for a term which may extend to threeyears, or with fine, or with both.10.Here, prosecution has examined as many as 12 witnessesincluding the Investigating Officer. Out of them, injured are PW6Ashruba (informant), PW1 Ramji, PW2 Rahubai (mother ofinformant) and PW7 Sunita (cousin of informant). Rest are claimingthat they had visited the spot and seen the occurrence. CriAppeal-44-2004-10- 11.PW6 Ashru, who is informant, has deposed that while he wasgoing to his land, his way was obstructed. First, accused no.1 Mahaduabused him and then gave blow of axe. When his uncle Ramji (PW1)came, he stated that, accused Motiram gave blow of axe on his head.Thereafter, his sister Sunita (PW7) and mother Rahubai (PW2) came.Accused Motiram gave axe blow on the center of head of Sunita, soalso hit Rahubai from the blunt side of axe. He named Dagdu,Kashiram, Jijaba, Mahadu Pradhan, Ramesh coming there and beatingby sticks and fist blows.12.PW1 Ramji also stated that when he reached the scene ofoccurrence, he saw PW6 Ashru had bleeding injury. When herequested accused not to assault, he stated that, accused no.2Motiram gave him blow of axe on the frontal side of head. Accusedno.1 Mahadu gave blow on his left thumb and when Rahubai came,accused no.2 Motiram gave her blow from blunt side of axe on righthand. Other accused assaulted Rahubai with sticks. Accused no.2Motiram gave axe blow on head of Sunita.13.PW2 Rahubai also stated that when she went to rescue her son,she saw Motiram, Mahadu and Shankar to be armed with axes. Shesustained injury on the forearm. She attributed blow to Motiram. She CriAppeal-44-2004-11- stated that her son Ashruba and brother-in-law were assaulted by axe.She stated that some assailants had sticks in their hands.14.PW7 Sunita also deposed about accused no.1 Mahadu hittingaxe on the head of Ashru, accused no.2 Motiram giving axe blow onleft side of head of her father Ramji, then accused no.1 Mahadugiving axe blow on left thumb of Ramji. She further stated thatstitches were required to be given to herself, Ashru and Ramji.15.Though PW3 Shantabai deposed that Motiram and Mahadugave blows of axe on head and left thumb of her husband andShankar assaulted Sunita, she merely stated that all were given stickblows. Therefore, actual injured Ashru, Ramji, Rahubai and Sunitahave categorically defined the roles of accused Mahadu, Motiram andShankar and they all are consistent about these accused to be armed. 16.PW4 Dr. Rodge, medico legal expert, in his evidence deposedabout examining Sunita Ramji Jogdand, Rawanabai Baliram Jogdand,Ramji Peeraji Jogdand and Ashru Baliram Jogdand and he identifiedcertificates Exhibits 45 to 48 issued by him. He also stated that injuryto Rawanabai is possible by axe blow from the blade side, injury no.1 CriAppeal-44-2004-12- to Ramji as well as both injuries to Ashruba to be possible by sharpedge of axe. In cross, he answered that injury to Sunita was vertical indirection. Therefore, on the night of occurrence itself, injuredwitnesses named above were examined by the medical expert andinjured witnesses’ account is finding support from the medical expert.17.On carefully going though the entire cross faced by PW1 Ramji,relevant cross regarding occurrence in para 8 goes to show thatoccurrence of assault is acknowledged and brought on record.Witness is asked, after how much time first blow was give when hereached the spot, after how much time second blow was given andwhether blood fell on the clothes of PW6 Ashruba. Witness hasanswered that he sustained bleeding injury to the left thumb. He isasked which side he was facing when blow was given to him andwhich side he was facing when second blow was given to him andafter how much time he fell unconscious. He flatly denied that firstthree accused had suffered any injury. He is questioned about themeasurement of axe, whether he came running towards the spot fromhis house and whether he had seen Rahubai and Sunita after sufferingblow. Consequently, defence has not disputed the occurrence ofassault. CriAppeal-44-2004-13- 18.Likewise, even in cross of PW2 Rahubai, omissions are merelybrought on the point of her son Ashruba going towards the land,about availability of ditch and cattle shed near the spot and aboutaccused persons assaulting anybody coming in their way. These arenot material omissions touching to the aspect of overt acts. In para 6of her cross, she categorically stated that two axe blows were given toAshruba in her presence and at that time, she was near Ashruba. Sheadmitted that the spot where Ramji was assaulted, was away from thespot where Ashruba was assaulted. Therefore, such manner of cross tothis witness categorically shows that occurrence of assault at thehands of accused is not disputed and denied.19.Nothing adverse is brought in the cross of injured PW7 Sunitaas well as PW3 Shantabai, whose husband Ramji was injured.20.When this Court pointed out above cross to learned counsel forthe appellants, he could not refute or offer any explanation as to howand why, when there is categorical admission in the cross regardingoccurrence and when the injured witness account is also findingsupport from medical evidence, the testimonies of PW1, PW2, PW3,PW6 and PW7 should be disbelieved. CriAppeal-44-2004-14- 21.PW5 Tulshiram has deposed about accused no.1 Mahadu,accused no.2 Motiram and accused no.3 Shankar givingmemorandum of disclosure regarding handing over axe. He hasfurther deposed about memorandum given by Kashiram, Dagdu andJijaba for producing sticks. Therefore, there is recovery of articles, ofwhich pancha’s testimony has not been disturbed.22.PW8 Prakash is admittedly an independent witness. LikewisePW9 Siddharth has nattered the occurrence and he has testified aboutvisiting the spot and seeing accused and his relatives carrying assault.He claims that he had requested not to assault. He also defined rolesof Motiram, Mahadu and Shankar, who were holding axe in theirhands. Even PW11 Mohan stated that, when he went, there wasquarrel. Mahadu, Shankar and Motiram were having axe in theirhands. He also attributed roles to these accused. However, hisstatement was not recorded by police and he directly deposed in thecourt.23.Therefore, here, there is overwhelming and clinching evidenceof not only injured eye witnesses, who are victims, but evenindependent witnesses wherein roles of present appellants areconsistently coming on record. As stated above, the entire tenor of CriAppeal-44-2004-15- cross shows that there is no challenge to the very occurrence ofassault.24.Though defence witness spoke about injuries suffered byaccused, it was a matter of distinct sessions case and not a part ofpresent trial faced by present appellants. To sum up, the evidence ofprosecution does support occurrence involving offence under Section324 of IPC.25.Perused the judgment under challenge. Evidence of injured aswell as independent witnesses has been correctly appreciated and thefindings are in consonance with the evidence on record as well as thelaw. No interference is called for. The facts of the cases cited by thelearned counsel for appellants are distinct and cannot be applied tothe case in hand. Hence, I proceed to pass the following order:ORDERThe appeal is dismissed. [ABHAY S. WAGHWASE, J.]vre